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Appellate Law

Appellate Law and Practice

Daily summaries of appellate cases from federal circuit courts of appeal. On the weekends, the blog provides appellate practice tips and book reviews.

Post Frequency: 1.8/day

Last Entry: December 10, 2008 at 16:15:09

CA1: An actual opinion describing appellate procedure on a habeas grant

Posted on January 24, 2008
Foxworth v. Maloney, 06-2379. When I started reading this, I knew it had to be good. Selya appears to be using big words to grant some kind of habeas relief. He points out that ?The king of habeas remedies is...

CA1: The formalities of putting someone in jail based on prior convictions and drug quantity

Posted on January 24, 2008
US v. Dickerson, 06-2471. A guy was sentenced to life in prison. As you know, many people are happy when this happens, because lifetime incarceration is the height of human accomplishment. So, it is merely a technicality as to why...

CA1: the interaction of sentencing, bankruptcy, collateral consequences of a non-conviction , and criminal law

Posted on January 23, 2008
Larson v. Howell, No. 07-1925. Two homestead exemption in a row. This one is more interesting the previous one, because ?as a matter of first impression, [requires the First] to determine whether the state crime of negligent vehicular homicide qualifies...

CA1: rich doctor?s deferred compensation plan was indeed a top-hat plan

Posted on January 23, 2008
Alexander v. Brigham & Women's Hospital, No. 07-1443. This is an ERISA issue. This means that you either 1) care; or 2) really, really, don?t care. The plaintiff is a surgeon that claims that his plan was *not* a valid...

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C&D letter case

Posted on January 23, 2008
Internet cases points to a case from the District of Idaho in which an ISP lost a subpoena battle over the identity of a web-site-writer after the writer allegedly infringed upon someone by posting a cease-and-desist letter. I still don?t...

Is Monte Carlos a better or worse place than a duck blind to compromise judicial ethics?

Posted on January 22, 2008
SW VA law blog points to this. A justice of the West Virginia Supreme Court and a powerful coal-company executive met in Monte Carlo in the summer of 2006, sharing several meals even as the executive?s companies were appealing a...

B.U. Seeks Director of Graduate Tax Program

Posted on January 22, 2008
Tax Prof blog posts the announcement that BU is looking for a director of its graduate tax program. This would be a good job for, someone, like say... the guy that runs TaxProfBlog.

CA1: 1983 challenges to hearing officer due process hearing cognizable, but not meritorious

Posted on January 22, 2008
Chmielinski v. Commonwealth of MA, No. 07-1652, rejects the argument that a Chief Probation Officer (in Massachusetts, probation is part of the judiciary) was fired without due process. The First holds that despite the fact that he worked for the...

CA1: non-nondischargeable debt doesn?t pierce homestead exemption

Posted on January 22, 2008
Pasquina v. Cunningham, No. 06-2786 concludes that the proceeds from the sale of the home that was subject to a state-law homestead exemption retain the exempt status of the home itself under 11 U.S.C. � 522(c). I thought the law...

A strange conception of ?legal?

Posted on January 22, 2008
Rhode Island Attorney General Patrick Lynch has an interesting concept of ?the law.? Granted, I understand that he is talking to non-lawyers, and there is no legal or ethical obligation not to talk down to them. Anyway, he writes to...

A Handkerchief Code For Law Reviews

Posted on January 22, 2008
If any of you frequent gay bars (or at least gay bars that resemble what I am told that gay bars are like) you will know that people there strictly follow a handkerchief code. The point of this code is...

The end of Atkins?

Posted on January 19, 2008
Okay, the case has gone up to the Supreme Court, and back down. The Virginia Supreme Court reversed because the judge in his ?retard-trial? (to see if he was really retarded ? shouldn?t that be presided over by a special...

At least she is honest about not taking defendant?s arguments seriously

Posted on January 19, 2008
It is always funny to see the biggest hacks clam to want to ?see all sides? or some crap like that. But, in Texas, you get to be a judge by making statements that claim that you are a ?pro-prosecution?...

CA1: flashing signs really can?t get no respect

Posted on January 18, 2008
Naser Jewelers, Inc. v. City of Concord, No. 07-2098. Do you know what an Electronic Messaging Center ("EMC") is? Well, it is an electric sign whose content changes. The city thinks it is distracting to drivers. So, they ban it....

CA1: no duty to defend against environmental suit as home heating oil is a pollutant

Posted on January 18, 2008
Nascimento v. Preferred Mutual Insurance Company, No. 07-1792 affirms a declaratory judgment action dealing with my favorite subject, insurance coverage. The plaintiff wants the court to say that the insurance company has to defend him in an environmental lawsuit brought...

CA1: parents were not cooperative enough in IEP plan

Posted on January 18, 2008
C.G. v. Five Town Community School District, No. 07-1708. This is a case under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. �� 1400-1415. The District Court dismissed the case when it ?found that the [Individual Education Plan?s] incompleteness...

CA1: 1983 case goes away with nexus

Posted on January 18, 2008
Gagliardi v. Sullivan, No. 06-2680 affirms the dismissal of a 42 U.S.C. � 1983 action based on the loss of a position on Merrimack Valley Workforce Investment Board when the board didn?t achieve the state certification. Even though it seems...

CA1: First reverses conviction in ?honest services? legislature case

Posted on January 18, 2008
US v. Urciuoli, Nos. 07-1297, 07-1327. This case vacates the convictions of conspiracy to commit "honest services" mail fraud and various counts of such mail fraud; 18 U.S.C. �� 371, 1341, 1346 (2000) in a legislator-bribery scheme. What makes this...

You want cert grants? I got yer cert grants right here!

Posted on January 18, 2008
SCOTUSblog provides today?s cert grants. The ones we care about are: MetLife v. Glenn: Dealing with the standard of review in ERISA cases where the administrator has a conflict of interest. See our coverage here. Altria Group v. Good. A...

Capital Punishment in Gotham

Posted on January 17, 2008
I know a lot of people on the Blawgospheric Interweb of Law (BIOL) have been talking about capital punishment. The opinions go something like this: More people should be killed by the government because if we don?t, kids will misbehave...

CA1: Two issues, two courts of appeal, two trials, two notices of appeal and no sanctions

Posted on January 17, 2008
Cytologix Corp v. Ventana Medical, No. 07-2629. Okay, we got a couple of large law firms fighting it out over some fairly minor procedural issues. My guess is that they spent lots of billable hours on this, so if you...

CA1: First gets preachy over botched motion

Posted on January 17, 2008
US v. Pomales-Lebron, No. 06-1620. On a denied motion for judgment of acquittal of Fed. R. Crim. P. 29, based on 21 U.S.C. � 846 (conspiracy to distribute cocaine base), the First says that the government did a good enough...

CA1: First screws up another Albanian asylum claim

Posted on January 15, 2008
Gjiknuri v. Gonzales, No. 07-1328 (unpublished) denies the asylum claims of Albanians. Once again the First does something which is really bad. They rely on an apparent form of stare decisis to conclude that asylum claims from some countries are...

CA1: 1983 suit against state court dismissed (with some interesting dicta)

Posted on January 15, 2008
Miles v. Funk, No. 07-1057 (unpublished) affirms summary judgment in a pro se 1983 case brought against a state court because ?Appellants claim that their deprivation was caused by the appellees' use of state court to enforce an allegedly unconstitutional...

Guy on probation gets to kill in the name of the state

Posted on January 14, 2008
SL&P points to a story of a guy on probation seeking permission to leave the state ? to take part in an execution. Anyway, everyone (i.e. the feds and the state) seems happy with this kind of person killing in...

DC Circuit: GS-9s can torture and interfere with religion much as they want

Posted on January 11, 2008
The DC Circuit holds that former GTMO detainees can?t sue the government. Nobody really expected the DC Circuit to rule otherwise, so I don?t think there is much to report on here. But, it is sort of funny to watch...

CA11: government wins Snipes motions

Posted on January 10, 2008
Just in case you 1) care; and 2) don?t know, the 11th Circuit rejected all of Wesley Snipes? pretrial motions (e.g. for a change of venue), on a motion from the government to dismiss as an ?impermissible interlocutory appeal.?

CA1: Syrian not that oppressed

Posted on January 10, 2008
Saliba v. Mukasey, No. 07-1647 (unpublished) denies the petition for review of a Lebanese petitioner (Greek Orthodox) seeking asylum. The facts are somewhat interesting, because apparently the Syrians were extorting fish from him. He applied late. The government argued that...

CA1: PSLRA case goes to defendant (as does denial of motion to amend), but not all news is good for defendants

Posted on January 10, 2008
ACA Financial v. Advest , 07-1367. The First proudly announces that this its first post-Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499 (2007) PSLRA case. PSLRA, in case you are a moron, stands for Private Securities...

CA1: American Airlines wins on issue of whether it can remove someone from a plane

Posted on January 10, 2008
Cerqueira v. American Airlines, 07-1824. The plaintiff alleged that he was removed from an airplane because of his race (or, from the captain?s perspective, an ?odd exchange.?) He sued and won a jury verdict (including punitive damages) under 42 U.S.C...

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